No. 13142 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

JOHN 0. STORRUSTEN, 

Plaintiff and Appellant, 

-vs - 

ROBERT HARRISON; KEHRWALD CONSTRUCTION 

COMPANY, and JOHN DOE, an individua 1, 

Defendants and Respondents. 

Appeal from: District Court of the Fifth Judicial District, 

Honorable Frank E. Blair, Judge presiding. 

Counsel of Record : 

For Appellant : 

McKittrick and I)uffy, Great Falls, Montana 

Joseph W. Duffy argued, Great Falls, Montana 

For Respondents: 

Corette, Smith and Dean, Butte, Montana 

Gerald R. Allen argued, Butte, Montana 

Poore, McKenzie, Roth, Robischon and Robinson, 

Butte, Montana 

Allen R. McKenzie argued, Butte, Montana 

Filed : 

Submitted: March 12, 1976 a ,) -\\ 

y 3 I. 2 Decided : 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Plaintiff, John 0. Storrusten appeals from summary 

judgment entered by the district court, Beaverhead County, 

for defendants Kehrwald Construction Company and Robert Harrison, relieving them of liability for plaintiff's injury. 

The events leading to plaintiff's injury are: On May 

17, 1971, defendant Harrison contracted with defendant Kehrwald 

Construction Company for the construction of a calving shed on 

Harrison's ranch property in Beaverhead County. Pursuant to this 

contract, Kehrwald Construction purchased numerous fifty-foot 

trusses from Brenna Truss Company in Great Falls, Montana, with 

the understanding that the trusses would be delivered to the construction site by Brenna. Plaintiff Storrusten, an employee of 

Brenna, helped load the trusses on a truck and delivered them to 

the ranch on July 12, 1971. Upon arrival, plaintiff was asked 

by defendants to participate in the unloading of the trusses. 

Harrison provided his own services, as well as that of his employee 

Jim McAndrews, and a tractor loader. Melford Kehrwald, owner of 

Kehrwald Construction, provided his services as well as that of 

his father, Charles Kehrwald. 

The unloading procedure was: plaintiff would cut some of 

the bands holding the bundled trusses and chain up those trusses 

to be removed; the remaining band was held in place to keep the 

trusses from springing apart until Storrusten could be clear. 

Once he was clear he would signal Charles Kehrwald, who would then 

cut the remaining band. McAndrews, operating the tractor-loader, 

would hoist the trusses off the truck. Harrison and Melford 

Kehrwald then stacked the unloaded trusses. 

No problem developed in the unloading until the last 

bundle. At that time, Storrusten alleged Charles Kehrwald cut 

the last band before he had an opportunity to get out of the way 

-2- 
and Storrusten was struck by the falling trusses, sustaining 

serious neck and shoulder injuries. 

The amended complaint alleged Storrusten received these 

injuries as a direct and proximate result of the negligence of 

Charles Kehrwald, while acting within the scope of his employment for Kehrwald Construction Company, Harrison, or both. 

Depositions were taken of Storrusten, Harrison, Melford 

Kehrwald and Charles Kehrwald. Finding the loaned servant doctrine applicable, the district court granted summary judgment 

to Kehrwald Construction. Apparently agreeing with Harrison's 

contention as to the lack of responsibility on his part for the 

unloading operation, the district court also granted summary 

judgment to Harrison. 

The issues on appeal are: 

(1) Was summary judgment in favor of Kehrwald Construction 

Company proper upon the facts before the district court? 

(2) Was summary judgment in favor of Robert Harrison proper 

upon the facts before the district court. 

Under Rule 56 (c) , M.R.Civ.P., defendants, being the moving parties for summary judgment, had the burden of proving the 

absence of any genuine issue as to any material fact to be entitled 

to judgment, as a matter of law. Stensvad v. Miners & Merchants 

Bank, 163 Mont. 409, 517 P.2d 715. In determining the extent of 

the moving party's burden in a summary judgment action, this Court 

in Kober & Kyriss v. Billings Deaconess Hospital, 148 Mont. 117, 

122, 417 P.2d 476, recognized the principle of law stated in 6 

Moore's Federal Practice, 5 56.15[3] and quoted: 

"'The courts hold the movant to a strict standard. 

To satisfy his burden the movant must make a 

showing that is quite clear what the truth is, 

and that excludes any real doubt as to the existence of any genuine issue of material fact.'" 

In view of these considerations, we hold Harrison met this burden, 

but Kehrwald Construction Company did not. 
Considering the summary judgment in favor of Kehrwald Construction Company, the memorandum accompanying the district court's 

order stated the loaned servant doctrine precluded Kehrwald 

Construction Company from being held liable for Storrusten's injuries. Plaintiff, on the other hand, contends Kehrwald Construction failed to meet its burden of conclusively showing that Charles 

Kehrwald, the man whose actions allegedly proximately caused 

plaintiff's injuries, became the borrowed servant of plaintiff 

for the duration of the unloading operation. After examining 

the record, we agree with plaintiff's contention. The record reveals Charles Kehrwald was in the employ of Kehrwald construction 

Company. 

In an action where the loaned servant doctrine becomes 

an issue, the ultimate question is--in whose business was the 

servant engaged? Devaney v. Lawler Corp., 101 Mont. 579, 56 P.2d 

746. Depending upon the circumstances of any given case several 

factors may be considered, but only two factors need be discussed 

here as they are dispositive of the issue. 

(1) Under whose control and direction was the unloading 

conducted? 

(2) For whose benefit was this operation undertaken? 

As to the question of control and direction, there is a 

substantial dispute. Kehrwald Construction Company relies upon 

the uncontested fact that plaintiff chained the trusses for unloading and directed the cutting of the bands, for its position 

that plaintiff was directing the unloading. At one point in his 

deposition plaintiff stated he directed the unloading. However, 

other statements by plaintiff in his deposition and others present 

during the unloading, tend to point to a different conclusion. 

Plaintiff testified he was not instructed by Brenna Truss Company 

to see to the unloading. Only when such specific instructions 

were given by Brenna was it customary for him to undertake such 
an operation. In fact, it was Melford Kehrwald who solicited 

both manpower and equipment for the unloading. Additionally, 

Melford Kehrwald professed ignorance as to the method of unloading and asserted this was the reason plaintiff directed the 

operation. Yet under questioning Melford Kehrwald admitted he 

had unloaded trusses before. After Storrusten was injured, 

Melford Kehrwald and the other men did not seem to have any great 

difficulty in unloading the remaining trusses. Finally, Melford 

Kehrwald admitted directing the actual truss unloading from the 

truck. In view of these facts it becomes an open question whether 

plaintiff was the person in charge of the unloading operation. 

In summary of the direction-control factor under the loaned 

servant doctrine, we believe the statement of the United States 

Supreme Court in the landmark loaned servant case Standard Oil Co. 

v. Anderson, 212 U.S. 215, 29 S.Ct.252, #53 L ed 480, 485, is apropos 

to the circumstances here: 

"Much stress is laid upon the fact that the 

winchman obeyed the signals of the gangman, who 

represented the master stevedore, in timing the 

raising and lowering of the cases of oil. But 

when one large general work is undertaken by 

different persons, doing distinct parts of the 

same undertaking, there must be co-operation 

and co-ordination, or there will be chaos. The 

giving of the signals under the circumstances of 

this case was not the giving of orders, but of 

information; and the obedience to those signals 

showed co-operation rather than subordination, 

and is not enough to show there has been a change 

of masters." 

As to the question of benefit from work done, this Court 

has had occasion to consider it as a factor in loaned servant 

litigation in the past. Lewis v. Potter, 149 Mont. 430, 427 P.2d 

306; Western Foundry, Inc. v. Matelich, 150 Mont. 228, 433 P.2d 

789. We again find it an important factor in the instant case. 

Plaintiff contends that all unloading work undertaken after 

the delivery of the trusses to the Harrison ranch accrued to the 

benefit of defendants not plaintiff, thus making the loaned servant 
doctrine inapplicable. From our examination of the record considerable dispute exists as to the benefit question, so as to 

render summary judgment in favor of Kehrwald Construction Company inappropriate. First, the invoice, a delivery order type 

of bill of lading, entered into evidence as Exhibit No. 1, was 

signed by Melford Kehrwald when plaintiff arrived at the ranch 

and before the unloading began. The bill of lading contained no 

unloading instructions. There was, in fact, nothing on it which 

restricted transfer of ownership of the trusses at the time of 

delivery. 

Section 87A-1-201, R.C.M. 1947, defines a bill of lading 

"(6) * * * a document evidencing the receipt of 

goods for shipment issued by a person engaged in 

the business of transporting or forwarding goods * * *.I! 

Section 87A-1-201, R.C.M. 1947, defines a document of 

title as: 

"(15) * * * bill of lading * * * or order for the 

delivery of goods, and also any other document 

which in the regular course of business or financing is treated as adequately evidencing that the 

person in possession of it is entitled to receive, 

hold and dispose of the document and the goods 

it covers. To be a document of title a document 

must purport to be issued or addressed to a bailee 

and purport to cover goods in the bailee's possession which are either identified or are fungible 

portions of an identified mass." 

Section 87A-2-401, R.C.M. 1947, in pertinent part provides: 

"(2) Unless otherwise explicitly agreed title 

passes to the buyer at the time and place at which 

the seller completes his performance with reference 

to the physical delivery of the goods * * * 

"(b) if the contract requires delivery at destination, title passes on tender there." 

Since it is not urged by Kehrwald Construction Company 

that Brenna had an obligation to unload the trusses and it is 

explicitly denied by plaintiff there can be no question that the 
tender of the trusses and Melford Kehrwald's signing of the 

bill of lading terminated any responsibility that Brenna Truss 

or plaintiff had for the goods. 

Substantial issues of material fact were raised as to 

control of the unloading and for whose benefit it was done, 

therefore summary judgment for Kehrwald Construction Company 

under the loaned servant doctrine is inappropriate. 

In regard to the summary judgment in favor of defendant 

Harrison, plaintiff contends Harrison retained such control 

over the unloading operation to render him subject to liability. 

We find no merit in this contention. 

Plaintiff alleges such control by Harrison indicates a 

joint enterprise relationship with Kehrwald Construction Company. 

Prosser Torts 4th Ed. 475 defines a joint enterprise to be: 

" * * * something like a partnership, for a more 

limited period of time, and a more limited purpose. 

It is an undertakinq to carry out a small number 

of acts or objectives, which is entered into by 

associates under such circumstances that all have 

an equal voice in directinq the conduct of the 

enterprise. The law then considers that each is the 

agent or servant of the others, and that the act of 

any one within the scope of the enterprise is to 

be charged vicariously against the rest." (Emphasis 

supplied. ) 

See: Sumner v. Amacher, 150 Mont. 544, 437 P.2d 630; Rae v. 

Cameron, 112 Mont. 159, 114 P.2d 1060. 

Whether Harrison and Kehrwald Construction Company were 

joint venturers so as to render Harrison liable for the acts of 

Kehrwald Construction Company's employee, Charles Kehrwald, must 

be determined from the contract executed by defendants and the 

circumstances surrounding the unloading. The contract, produced 

in evidence, specifically designates Melford Kehrwald as "contractor" and Harrison as "contractee" and clearly states there 

are no covenants, promises, or agreements, written or oral, except 

as set forth in the writing; no mention is made of a joint enter- 
prise relationship. The depositions of all participants disclose no facts tending to show control by Harrison over the 

unloading operation; rather the depositions place Harrison 

several feet distant from the truck during the unloading and 

aiding only in the stacking of the trusses. 

In view of these facts, this Court's holding in Greening 

v. Gazette Printing Co., 108 Mont. 158, 165, 166, 88 P.2d 862, 

is directly in point. In Greening this Court was asked to 

determine the relationship between two contracting parties in an 

effort to determine possible liability for injuries to a third 

person. The Court said: 

"As between the parties, the written contract is 

controlling as to the relationship, and ordinarily 

neither party may vary it by par01 testimony; but 

as to third parties, this is not the case. Whatever obligations the relation might impose on 

either as respects third parties could not depend 

upon the nature of the stipulations, but must spring 

from the relation itself. * * * 

" * * * There was no testimony to show that any 

control over Stewart, other than that provided for 

in the contract, was exercised by the respondent, 

and particularly there is no showing of any such 

exercise of control on the day of the injury complained of. Had such a showing been made, the 

question of the relationship at the time of the 

injury should properly have been submitted to the 

jury; but since no such showing was made, the 

relationship must be determined by the contract 

itself. " 

Similarly, in the instant case, no testimony in deposition indicates in any way that Harrison had an "equal" input into the 

unloading operation, to qualify the undertaking as a joint enterprise. Thus, as in Greening, we are left with the terms of the 

contract in determining a possible basis for Harrison's liability. Since the contract explicitly provides for a contractorcontractee relationship, with no mention of a joint enterprise, 

we find no material issue of fact as to Harrison's liability 

under a joint enterprise theory. 

Finally plaintiff, apparently pleading in the alternative 
argues that an employer-independent contractor relationship 

may have existed between the defendants but that the facts tend 

to show Harrison retained such control over the work to be liable 

for the accident. The general rule is that the employer of an 

independent contractor is not liable for the negligence of the 

contractor or his employees. 57 C.J.S. Master and Servant 8584. 

So the question becomes--did Harrison retain such control as to 

trigger an exception to the independent contractor rule? Relying on the same source utilized by plaintiff, 2 Restatement of 

Torts 2d S414, Comment (c) p. 388, states: 

"In order for the rule stated in this Section 

to apply, the employer must have retained at 

least some degree of control over the manner 

in which the work is done. It is not enough 

that he has merely a general right to order the 

work stopped or resumed, to inspect its progress 

or to receive reports, to make suggestions or 

recommendations which need not necessarily be 

followed, or to prescribe alterations and deviations. Such a general right is usually reserved 

to employers, but it does not mean that the contractor is controlled as to his methods of work, 

or as to operative detail. There must be such a 

retention of a right of supervision that the 

contractor is not entirely free to do the work in 

his own way." 

Upon the record in this case, the exception cited by plaintiff 

is inapplicable because there is no factual ground to support a 

finding of any retention of specific control by Harrison. The 

mere fact he assisted in the stacking of the trusses is insufficient to establish the degree of control contemplated by the 

exception. 

We affirm the summary judgment in favor of Robert Harrison. 

We reverse the summary judgment as to Kehr~ald~Construction 

Company. 

,/ Justice 1 
W Justices 

Hon. Bernard Thomas, District 

Judge, sitting in place of Mr. 

Chief Justice James T. Harrison.